309 N.Y. 487 | NY | 1956
On this appeal, we are asked to decide whether, under subdivision 7 of section 285-a of the Surrogate’s Court Act, a testamentary trustee is entitled to retain, in addition to normal commissions under the preceding subdivisions of said section, extra commissions of 6% on gross rents collected under the 99-year net lease made by the testator, where there was no evidence of any specific acts of management by the trustee.
Elmer Ellsworth Smathers died in 1928, leaving a last will and testament dated December 11,1926, which was duly admitted to probate by the Surrogate’s Court of Westchester County. Thereafter, on December 5, 1930, letters of trusteeship were duly issued to Guaranty Trust Company of New York (hereinafter called Guaranty), as substituted trustee, in which capacity it has continued to serve. Among the assets of the estate were certain premises known as 18 Broadway, New York City, which were then and are now occupied by Standard Oil Company of New York (hereinafter called Standard Oil) under a lease, commencing on March 1, 1920, and continuing until the last day of February, 2019. This lease was negotiated by the
As substituted trustee, Guaranty filed four intermediate accounts covering the period from December 5-, 1930, to April 15, 1948, all of which were settled and allowed by the Surrogate’s Court., The present dispute arose over- items contained in the fifth intermediate account which covers the period from April 15, 1948, to April 15, 1953. This account shows the regular receipt of rents from 18 Broadway at the rate of $62,500 quarterly, making a total collection for this last accounting period of $1,250,000. Pursuant to subdivision 2 of section 285,-a of the Surrogate’s Court Act, the trustee has retained regular commissions on these collections in the amount of approximately $25,000, to which no objection has been made.
For the period, from January 1, 1949, to June 30, 1953,, Guaranty for the first time retained additional commissions in the amount of $7,500 semiannually, making a total of $67,500 ‘ ‘ Total Extra Commissions ’ ’. It is the retention of these extra commissions to which appellant, an income beneficiary, objects. Guaranty claims that, it is entitled to this extra compensation under subdivision 7 of section 285-a of the Surrogate’s Court Act, which provides : “ Where a trustee is- for any reason or cause whatsoever entitled or required to collect the rents of and manage real property, the net amount of rents collected and not the gross amount shall be used in making computation of commissions allowed by subdivision two hereof, and in addition to the commissions hereinbefore provided he shall be allowed and may retain for such services six per centum of the gross rents collected, but there shall be only one such additional commission regardless of the number of trustees.. In the event that there are two or more trustees the additional commission herein provided for must be apportioned among’ them according to the services rendered by them respectively.” (Emphasis supplied.) Appellant contends that under the terms of the lease and will in this case the trustee is neither required, nor entitled, to manage said property, and has not done so, and therefore is not entitled to management commissions under the provisions of subdivision 7.
The lease is a net lease. Standard Oil, the tenant, is by its terms granted exceedingly substantial rig’hts which make it the
In case of nonpayment of rents, taxes, assessments, liens, or in the event of bankruptcy, insolvency, or abandonment of the premises, the landlord may remove the tenant by summary proceedings, re-enter and re-let the premises. There has been no default, actual or threatened.
The only evidence introduced at the hearing was the lease and the will. Guaranty expressly declined to introduce evidence showing any specific acts of management on its part. The Surrogate, though recognizing that the lease in this case was not the same as the lease in Matter of Brennan (251 N. Y. 39), held that the “ assumption and exercise ” of the “ ultimate responsibility ” for the administration of the demised premises “ constitutes management within the meaning of the statute ” (emphasis supplied), and dismissed the objections. The Appellate Division, which affirmed the Surrogate but granted leave to appeal to us, also recognized that the lease “ contained provisions by which the landlord was relieved of all obligations
At common law, executors and trustees served without compensation (Matter of Schinasi, 277 N. Y. 252, 258; McWhorter v. Benson, 1 Hopk. Ch. 28, 32, 40 [1823]; Green v. Winter, 1 Johns. Ch. 26, 37 [1814]; Bogert on Trusts and Trustees, Yol. 4, pt. 2, p. 354, § 974). In 1817 a statute was enacted enabling the Court of Chancery to make a reasonable allowance for the services of guardians, executors and administrators (McWhorter v. Benson, supra), but it was not until 1866 that an act was passed which expressly provided that trustees were entitled to the same commissions (Matter of Roosevelt, 5 Redf. 601, 607-608 [1882]).
The more recent enactments may be briefly noted. By chapter 649 of the Laws of 1923, section 285 of the Surrogate’s Court Act was amended to provide: “ Commissions of executor, administrator, guardian or testamentary trustee. * * * Where a trustee or executor is, by the terms of the instrument, required to collect the rents and manage real property, he shall be allowed and may retain, five per centum of the rents collected therefrom, in addition to the commissions herein provided.” By chapter 892 of the Laws of 1934, the provision relating to additional commissions was again amended, and it became subdivision 9 of section 285 and provided: “ 9. Where an executor, administrator, guardian or testamentary trustee is, for any reason or cause whatsoever, entitled or required to collect the rents of and manage the real property, he shall be allowed and may retain five per centum of the rents collected therefrom in addition to the commissions herein provided.” By chapter 694 of the Laws of 1943, the provisions relating to trustees were placed in the new section 285-a, and subdivision 6 of that section was in somewhat similar form (with some exceptions not here material) to present subdivision 7 as enacted in 1948 (L. 1948, ch. 582), quoted above and with which we are now concerned.
Turning, then, to subdivision 7 of section 285-a, it clearly appears that the 6% commission on gross rents collected and here claimed is “in addition to ” the regular commissions on net rents “ collected ”, as allowed by subdivision 2 (see Matter of Schinasi, supra, pp. 263-264; Matter of Sidenberg, 147 Misc. 742, 750). These additional commissions are obviously meant to be compensation for additional services, to wit, for the management of real property in addition to the collection of rents. The statute plainly indicates that the additional commissions may be retained ‘ ‘ for such services ’ Furthermore, if there is more than one trustee, the additional commissions must be apportioned ‘ ‘ according to the services rendered ’ ’ by them. Thus, if one trustee performs all “ such services ”, he would be entitled to all the additional commissions, and his cotrustees would receive nothing; and so, if no trustee performs any “ such services ”, no additional commissions may be retained. The words “ manage ” and “ services ” connote activities, and indicate that the Legislature required some definite action on the part of the trustee “ in addition to ” the mere passive receipt or collection of rents. Subdivision 2 of section 285-a does not use the word “ manage ” or “ services ”, but simply provides that “ A trustee shall * * * be entitled to commissions from the income of the trust ” at designated percentages on the “ income collected ”.
Respondent urges that in the event Standard Oil defaults in the payment of rent, liens or taxes, it may have to re-enter the premises. We do not think that anticipatory action, however remote, without more, can be equivalent to the management required by subdivision 7. The mere collection of rents here does not involve any more action than collection of interest on
Respondent Guaranty relies heavily on Matter of Brennan (251 N. Y. 39, supra). Aside from the fact that when we there held that the Surrogate had no power to modify his own decree that disposed of the appeal, our further discussion with respect to the allowance of additional commissions does not sustain the respondent’s position on this appeal for the following reasons:
(1) The language of the present section 285-a is different from that of former section 285 as it read when the Brennan case (supra) was decided in 1929. The phrases “ for such services ” and “ according to the services rendered by them ”, heretofore adverted to, were added by the 1943 and 1948 amendments. Respondent glosses over this by merely stating that these amendments are of a purely formal nature and have no bearing-on the question here before the court. To the contrary, we think these additions are most significant. It is well settled that in the interpretation of a statute we must assume that the Legislature did not deliberately place a phrase in the statute which was intended to serve no purpose (Matter of Zellner [Brooklyn Trust Co.], 299 N. Y. 243, 247; People v. Dethloff, 283 N. Y. 309, 315), and each word must be read and given a distinct and consistent meaning (New York State Bridge Auth. v. Moore, 299 N. Y. 410, 415-416; Palmer v. Van Santvoord, 153 N. Y. 612, 616). The only reasonable conclusion that can be reached is that the Legislature clearly intended — and so indicated— that the extra compensation for management can be retained only “ for such services ”, i.e., for the active performance of the duties and obligations connected with the real property, and not for just ‘ ‘ general responsibility ’ ’ remotely dependent “ on future contingency ” as respondent contends.
(2) The fact pattern in the Brennan case (supra) is clearly different from that in the case at bar, and what is said in a judicial opinion must be confined by the facts of the case in which it was uttered (Crane v. Bennett, 177 N. Y. 106, 112). It is true that in both leases a number of the standard contingent clauses are similar, as, for example, the tenant was required to pay all taxes
However, there are substantial differences in the remaining essential clauses of the two leases which establish that the Brennan trustee had many duties which it had necessarily to fulfill, as, e.g., the Brennan lease was negotiated by the trustee, a very active duty in itself, whereas the subject lease was negotiated by the testator himself ten years before Guaranty had any interest in this property; the use of the Brennan property was severely restricted to the operation of a theatre and studio, whereas Standard Oil may use the property for any lawful purposes; the landlord could enter upon the Brennan premises and make repairs; the Brennan tenant could not assign the lease without the written consent of the trustee; if the building be totally or partially destroyed, the Brennan tenant was to be discharged, while Standard Oil will still remain liable for the rent; the Brennan tenant had to prepare plans and submit them to the landlord before he could make any alterations, and also had to secure a bond to cover the cost; and, most significant, there is no release clause in the Brennan lease comparable to that in the subject lease, which provides, as hereinbefore more fully noted, that the “ Landlord shall be relieved of all obligations respecting the premises, and shall relinquish all control over the management of employees and the operation of the premises.” (Emphasis supplied.)
Thus, under the Brennan lease, the trustee had continuing rights and duties of management which do not appear in the present lease. Indeed, if ever there were a lease where the landlord had virtually nothing to do but collect rent, this is such a case. As we said in the Brennan case (supra), it is the “ exercise ” of responsibility for “ directing, supervising, overseeing, administering and controlling the property ’ ’ that ‘ ‘ constitutes management within the intent of the statute ” (p. 44). The evidence here is that Guaranty did nothing beyond receiving the rent.
In this case, Guaranty has already retained for the accounting period approximately $25,000 in regular commissions for the
The order of the Appellate Division appealed from should be reversed, the decree of the Surrogate modified by sustaining the objections of the appellant, disallowing to respondent additional commissions under subdivision 7 of section 285-a of the Surrogate’s Court Act, and the matter remitted to the Surrogate for further proceedings not inconsistent with this opinion, with costs in all courts to the appellant payable out of the estate.
Conway, Ch. J., Desmond, Fuld, Van Voorhis and Burke, JJ., concur; Dye, J., taking no part.
Order reversed, etc.
